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Himachal Pradesh High Court · body

2020 DIGILAW 585 (HP)

Beli Ram v. State of H. P.

2020-09-10

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. Case of the petitioner herein is that despite having been conferred work-charge status since 13.4.2002, prior to Notification dated 15.5.2003, whereby CCS (Pension) Rules, 1972 (hereinafter referred to as Pension Rules) and GPF Rules were made inapplicable for all appointments made on or after 15.5.2003, respondents are depriving him from benefit of Pension Rules and GPF Rules. 85. It is undisputed that on 13.4.1994, petitioner was appointed as a Driver, on dailywaged basis, in Development Block, Jubbal, District Shimla, with the respondents-Department and in view of Regularization Policy, dated 9.6.2006, issued by Government of Himachal Pradesh for regularization of daily-waged employees, his services were regularized vide Office Order dated 16.11.2006 (Annexure A-1). 86. It is also an admitted fact that petitioner had approached this High Court by filing CWP No.5838 of 2010, titled as Beli Ram v. State of Himachal Pradesh, which was disposed of vide judgment dated 23.9.2010, directing the Director of Rural Development, Himachal Pradesh, to take appropriate action addressing the representation submitted by the petitioner, for conferment of workcharged status, on the basis of judgment dated 28.7.2010 in CWP No.2735 of 2010, titled as Rakesh Kumar v. State of Himachal Pradesh, rendered by this High Court. Thereafter, the Director of Rural Development, Himachal Pradesh, after taking into consideration entire fact of the case, vide Office Order dated 15.3.2011, granted work-charged status to the petitioner on his completion of eight years' service, w.e.f. May, 2002 (Annexure R-1) till actual date of regularization, alongwith all consequential benefits. 87. It is also indisputable, rather admitted, that one Bahadur Singh, regularized, vide Office Order dated 16.11.2006 (Annexure A-1), alongwith the petitioner, had also filed a Writ Petition bearing CWP No.5898 of 2010, titled as Bahadur Singh v. State of Himachal Pradesh, for conferment of work-charge status upon him, on the basis of Rakesh Kumar's case supra, and the said petition was also disposed of by a Division Bench of this Court vide judgment dated 7.12.2010, with direction to petitioner Bahadur Singh to approach respondents-Department and further direction to the Department to consider his case on the basis of Ramesh Kumar's case. 88. 88. Considering representation of Bahadur Singh, work-charged status was conferred upon him also, vide Office order dated 15.3.2011, on completion of eight years service, w.e.f. December, 2000, till actual date of regularization, i.e. 16.11.2006, alongwith all consequential benefits, like petitioner, on the very same day when work-charged status was conferred upon the petitioner. 89. In Para-6(vii) of the petition, it is claimed by the petitioner that similarly situated persons have been extended benefit of Pension Rules and GPF Rules and to substantiate this plea, he has placed on record communication dated 6.12.2012, sent from Director of Rural Development to concerned Block Development Officer, demanding certain documents pertaining to Bahadur Singh (retired) for his Leave Encashment and in the said list of documents, copy of Pension Payment Order (PPO), issued by the Accountant General, alongwith status of GPF/CPF of said Bahadur Singh, have also been requisitioned. 90. In reply, filed on behalf of respondents, in response to aforesaid Para-6(vii), contents of preliminary submissions No.1 to 9 have been reiterated. In preliminary submissions No.1 to 9, there is no response, muchless denial, to the aforesaid submissions of the petitioner, which is deemed admission of the claim of the petitioner on this count. 91. In opposing the claim of petitioner, respondents-Department has taken a stand that the petitioner was regularized w.e.f. 16.11.2006, on the basis of Policy dated 9.6.2006, issued by the Government of Himachal Pradesh and as he had joined regular establishment, after his regularization, which is a date subsequent to 15.5.2003, therefore, he is not entitled for benefits of Pension Rules and GPF Rules and further that Department of Rural Development does not have work-charged establishment and there is no category of work-charged worker in the Department and further benefit of status of work-charged employee conferred upon the petitioner does not entitle him to count his service from the date of conferment of said status, bringing him within the ambit and scope of Pension Rules and GPF Rules. 92. 92. It is also contended by the State that =work-charged establishment' differs from =regular permanent establishment' and thus these are two separate types of establishments and persons employed in these establishments form two separate and distinct classes, which are to be governed by separate set of rules and the rules, applicable to the employees working in regular establishment, are not applicable to the work-charged employees and, therefore, it is argued that petitioner is to be governed under Contributory Pension Scheme, which is also called National Pension System (NPS). 93. Material on record proves and establishes that petitioner is not only similarly situated but also identical to Bahadur Singh referred supra and, thus, he is entitled for identical treatment. 94. Two identically situated employees in a Department cannot be treated differently. State is expected to be a model employer and thus has to treat similarly situated employees in identical manner. Therefore, omissions and commissions on the part of the Department, depriving the petitioner from the benefits, which have already been extended by the department in favour of another identically positioned employee, is arbitrary, unreasonable, irrational, which is anti-thesis of Equality clause contained in Article 14 of the Constitution of India. Equals cannot be treated as unequally. 95. Issue that as to whether services rendered by a person as a work-charged employee, on regularization, are to be counted for pensionary benefits or not, is no longer res integra, as it stands settled by various pronouncements rendered by different High Courts, including this High Court, as well as the Supreme Court of India. 96. A Full Bench of Punjab and Haryana High Court in Kesar Chand v. State of Punjab, reported in (1988) 94(2) PLR 223 : 1988(5) SLR 27, has held that an employee, holding substantively a permanent post on the date of his retirement, was entitled to count in full as qualified service the period of service in work-charged establishments for the purpose of calculating the pension and gratuity. 97. 97. The Apex Court in Punjab State Electricity Board and another v. Narata Singh and another, (2010) 4 SCC 317 , has considered the above referred judgment of the Punjab and Haryana High Court in Kesar Singh's case and has held that in view of settled position, there was no manner of doubt that work-charged service, rendered by an employee, was qualified for grant of pension under the rules of Government of Punjab and, therefore, Punjab State Electricity Board was not correct in rejecting the claim of employee for inclusion of period of work-charged service rendered by him with the State Government for grant of pension, on the ground that service rendered by him in work-charged capacity, was outside PSEB and in the department of State Government, he was in a non-pensionary service. 98. A Division Bench of this Court in its judgment, rendered on 31.5.2012, in CWP No.2240 of 2008, titled as State of H.P. and others v. Tulsi Ram, has observed that the State of Himachal Pradesh is admittedly counting the service rendered on work-charged basis for calculating pension. In this pronouncement, Kesar Chand's case supra, has also been referred. 99. A Single Bench of this High Court in judgment dated 6.3.2013, in CWP No.6167 of 2012, titled as Sukru Ram v. State of Himachal Pradesh and others, considered the judgments in Tulsi Ram's and Narata Singh's cases, referred supra, and had issued direction to the State of Himachal Pradesh to count the service, rendered by a person as work-charged employee, towards qualifying service for calculating pension payable to him. 100. A Division Bench of this Court in its pronouncement dated 18.12.2018, in CWP No.2384 of 2018, titled as State of Himachal Pradesh v. Matwar Singh, after referring judgments in Sukru Ram's and Kesar Chand's cases, referred supra, has affirmed the order, dated 31.7.2017, passed by the erstwhile H.P. State Administrative, in OA No.6681 of 2016, whereby employee's claim to count the work-charged service towards qualifying service for the purpose of pension and other retiral benefits, was allowed. 101. In Civil Appeal No.6309 of 2017, titled as Sunder Singh v. The State of Himachal Pradesh, the Apex Court has observed that it is undisputed that post-regularization an employee, who has served for ten years, is entitled for pension for which work-charged service is counted. 101. In Civil Appeal No.6309 of 2017, titled as Sunder Singh v. The State of Himachal Pradesh, the Apex Court has observed that it is undisputed that post-regularization an employee, who has served for ten years, is entitled for pension for which work-charged service is counted. In this judgment, the Supreme Court has further directed that daily-waged service of five years will be treated equal to one year of regular service for pension and if on that basis, service is more than 8 years but less than 10 years, the service will be reckoned as ten years. 102. The Apex Court in Prem Singh v. State of Uttar Pradesh and others, reported in (2019) 10 SCC 516 , has directed that service rendered in work-charged establishment is to be treated as qualifying service for grant of pension and that appointment of an employee working in work-charged establishment, for a long period, cannot be said against any particular project. 103. In present case also, stand of the Department that work-charged employee, appointed against a particular project, is not tenable, as the petitioner was appointed as a Driver not in the project but in the department against a post initially on daily-waged basis and thereafter on regular basis and lateron work-charged status was also conferred upon him on completion of eight years service till regularization. Petitioner was engaged against on existing post in the Department and lateron regularized, in terms of Policy issued by the State, after completion of prescribed length of service. Job performed by the petitioner as a daily-waged and work-charged employee and also as a regular employee was identical and requirement thereof was existing from the date of initial appointment as daily-wager since 1994 not only till the date of conferment of work-charged status and regularization but continuously thereafter also. 104. A ground has been taken by the respondents-Department that Department of Rural Development is not having work-charged establishment and, thus, benefit of period of service as a work-charged employee cannot be extended to the petitioner. It is undisputed that in Mool Raj Upadhyaya vs. State of H.P. and others, 1994 Supp. 104. A ground has been taken by the respondents-Department that Department of Rural Development is not having work-charged establishment and, thus, benefit of period of service as a work-charged employee cannot be extended to the petitioner. It is undisputed that in Mool Raj Upadhyaya vs. State of H.P. and others, 1994 Supp. (2) SCC 316, an affidavit was filed by the Chief Secretary to the Government of Himachal Pradesh, formulating a Scheme for granting workcharged status to all daily-waged employees, serving in the State of Himachal Pradesh, in all Departments, irrespective of the fact that Department is/ was having work-charged establishment or not. 105. In Gauri Dutt and others Vs. State of H.P., reported in Latest HLJ 2008 (HP) 366, it has been held that the scheme formulated in Mool Raj Upadhaya's case is applicable to daily-waged employees working in any department of the state of Himachal Pradesh and the employees, who are not governed by the directions given in Mool Raj Upadhaya's case, shall be governed by a Scheme framed by the State in this regard and it has also been observed that granting of work-charged status would mean that an employee would get regular scale of pay. 106. Term ?work-charged?, discussed State of Rajasthan v. Kunji Raman, reported in (1997) 2 SCC 517 , is in different context, whereas this term, in Himachal Pradesh, is used in different context. A person, working on daily-waged basis, before his regularization, is granted workcharged status on completion of specified number of years as daily-wager and effect thereof is that thereafter non-completion of 240 days in a calendar year would not result into his ouster from the service or debar him from getting the benefit of length of service for that particular year. Normally, work-charged status is conferred upon a daily-wager, on accrual of his right for regularization, on completion of prescribed period of service, but for non-regularization is for want of regular vacancy in the department or for any other just and valid reason. Normally, work-charged status is conferred upon a daily-wager, on accrual of his right for regularization, on completion of prescribed period of service, but for non-regularization is for want of regular vacancy in the department or for any other just and valid reason. Therefore, it is a period interregnum dailywage service and regularization, which is altogether different form the temporary establishment of work-charge, as discussed in the judgment of the Apex Court relied upon by the State and, for practice in Himachal Pradesh, work-charged status is not conferred upon the person employed in a project but upon such daily-wage workers, who are to be continued after particular length of service for availability of work but without regularization for want of creation of post by Government for his regularization/ regular appointment. Therefore, work is always available in such cases and the charge of a daily-wager is created thereon to avoid his disengagement for reasons upon which a daily-wager can be dispensed with from service. 107. Upholding the order passed by the erstwhile H.P. State Administrative Tribunal, a Division Bench of this Court, vide judgment dated 10.5.2018, in CWP No.3111 of 2016, titled as State of Himachal Pradesh v. Ashwani Kumar, has pronounced that work-charged establishment is not a pre-requisite for conferment of work-charged status nor conversion of work-charged employee into regular employee would make such establishment non-existent. 108. On conferment of work-charged status, sword of disengagement, hanging on the neck of workmen, is removed on completion of specified period of daily-waged service, as thereafter instead of daily-wage, the employee would get regular pay-scale and would be entitled to other consequential benefits for which a daily-waged employee is not entitled. 109. In the given facts and circumstances of present case, judgment relied upon by the respondents reported in Kunji Raman case (supra), is neither relevant nor applicable. 110. At this stage, a communication dated 25.11.1975 sent from the Secretary (PW) to the Government of Himachal Pradesh, to the Chief Engineers, HPPWD, is also relevant for reference, whereby with concurrence of Finance Department, it has been clarified that all work-charged employees, including temporary industrial workers, are to be treated to be part of pensionable establishment. The said communication is reproduced as under, for convenience: ?From The Secretary (PW) to the Government of Himachal Pradesh. To The Chief Engineers, H.P.P.W.D., Shimla-171001. The said communication is reproduced as under, for convenience: ?From The Secretary (PW) to the Government of Himachal Pradesh. To The Chief Engineers, H.P.P.W.D., Shimla-171001. Dated Shimla -171002, the 25th November, 1975 Subject: Extension of Family Pension Scheme 1964 to the temporary work charged staff. Sir, I am directed to refer to your letter No.PWD-133-(Pension)/75- 10844, dated 30/8/75 and this Department Office Ofder No.1-18/69-PWD(Part), dated 4/4/1973 and to say that in C.P.W.D., the temporary Work Charge staff having been given option either to join the pensionary establishment or to be admitted to or retain W.C. Provident Fund, w.e.f. 21-5-71, a question was raised that the benefits of Family pension scheme, 1964 may be extended to all the temporary W.C. staff of H.P.P.W.D. as admissible to their counterparts in C.P.W.D. In this connection, the matter has been carefully considered. There was and is no C.P.F. Scheme in operation in Himachal Pradesh. The Permanent W.C. staff under H.P.P.W.D. was extended the benefits of liberalized pension rules/gratuity, and family pension Scheme, w.e.f. 18.11.60 and 1.1.64 respectively. This was in accordance with the decision contained in Government of India, Ministry of Finance (Department of Expenditure) office memo. No. 17(5)-EV(A)/60, dated 18.1.60. The Government of India vide their office memorandum No.B.43(4)- EV(B)/71, dated 1.5.71, in modification of the orders dated 18.11.60 have extended the benefits to the temporary W.C. staff to join the pensionable establishment or be admitted to or retain Contributory Provide Fund benefits referred to above. Since in Himachal Pradesh, the temporary W.C. employees, falling in the category of industrial were not enjoying concession of C.P.F. benefits, and permanent W.C. employees were already entitled to pensionary/family pension benefits which were extended to them with retrospective effect i.e. w.e.f. 18.11.60 and 1.1.64 respectively, it is clarified that all W.C. employees, including temporary industrial workers are to be treated to be part of the pensionable establishment. This issue with the concurrence of the Finance Department obtained vide their U.O. No.FIN(C)-A(9)-6/75-2703, dated 21.10.75. Jai Hind. Yours faithfully, Under Secretary (PW) to the Government of Himachal Pradesh? 111. In present case, Division Bench of this Court in CWP No.5838 of 2010, preferred by the petitioner, had directed the Department to consider representation of the petitioner, on the basis of Rakesh Kumar's case supra and, thereafter, the Department had considered the facts of the case and had conferred the status of work-charged employee upon the petitioner. 111. In present case, Division Bench of this Court in CWP No.5838 of 2010, preferred by the petitioner, had directed the Department to consider representation of the petitioner, on the basis of Rakesh Kumar's case supra and, thereafter, the Department had considered the facts of the case and had conferred the status of work-charged employee upon the petitioner. At no point of time, in the case of petitioner, the Department had raised the issue that it was not having work-charged establishment. Therefore, now, at this stage, for omission and commission on the part of the Department, this plea is not sustainable. 112. Once work-charged status has been conferred upon an employee by the Department, which is a limb of Government of Himachal Pradesh, then after doing so, the Department cannot take U-turn to deny the benefit of such status conferred upon the employee by the Department itself. Work-charged employee, in either of the Departments of Government of Himachal Pradesh, whether it is Public Works Department or Irrigation and Public Health Department or any other Department, like present one, constitutes same class, i.e. work-charged employee under the Government of Himachal Pradesh and when, as evident from the communication dated 25.11.1975, work-charged employees in Public Works Department, now bifurcated into Public Works Department and Irrigation & Public Health Department, are treated to be part of pensionary establishments, the respondents- Department cannot deny such benefit to employees conferred work-charged status by the department itself. Therefore, it does not lie in the mouth of respondents that work-charged employees in Department of Rural Development are not to be treated as part of pensionary establishment. Such a discriminatory treatment to its similarly situated employees, forming identical class, is not expected from a democratic welfare State, being custodian or protector of Fundamental Rights of its citizens, as such any discrimination, on this count, would be violative of Article 14 of the Constitution of India. 113. Such a discriminatory treatment to its similarly situated employees, forming identical class, is not expected from a democratic welfare State, being custodian or protector of Fundamental Rights of its citizens, as such any discrimination, on this count, would be violative of Article 14 of the Constitution of India. 113. Despite having been bestowed status of custodian of rights of its citizens, State, since long, is adopting exploitative method in the field of public employment to avoid its liabilities, depriving the persons employed from their just claims and benefits by making initial appointments on temporary basis, i.e. contract, adhoc, tenure, daily-wage, work-charge, etc., in order to shirk from its responsibility and present case is also an example of such practice, where requirement of driver is very much in existence since beginning, but instead of employing/appointing a person on regular basis, appointment on daily-wage basis is made and for considerable long period, exploiting unemployment, person is forced to serve as such and, thereafter, he is converted as a regular employee and on approaching the Court work-charged status is also conferred upon him. When such department has conferred status of work-charged on an employee on its own, after due consideration, then such department cannot take U-turn for denying benefits of work-charged service of such employee, which is otherwise available to similarly situated work-charged employees in other departments of the State. 114. In the light of aforesaid discussion, particularly pronouncements as well as communication dated 25.11.1975, referred supra, it is held that the period of service rendered by a person as work-charged employee with any establishment of State of Himachal Pradesh is to be counted, as qualifying service for pensionary benefits, irrespective of the fact that the Department is having work-charged establishment or not. In addition, in terms of pronouncement of Supreme Court in Sunder Singh's case, daily-waged service of 5 years will be treated equal to one year of regular service for pension and if on that basis, service is more than 8 years but less than 10 years, the service will be reckoned as ten years. 115. In addition, in terms of pronouncement of Supreme Court in Sunder Singh's case, daily-waged service of 5 years will be treated equal to one year of regular service for pension and if on that basis, service is more than 8 years but less than 10 years, the service will be reckoned as ten years. 115. In view of aforesaid conclusion, the petitioner is to be considered in the pensionary establishment with effect from conferment of work-charged status upon him, i.e. May, 2002, which is prior in time to the Notification dated 15.5.2003 and, thus, he is entitled for benefit of Pension Rules and GPF Rules and all other consequential benefits incidental thereto. In addition, in view of Sunder Singh's case, he shall also be entitled to treat daily-waged service of five years equal of one year of regular service for pension and if on that basis, service is more than 8 years but less than 10 years, the service will be reckoned as ten years. 116. Accordingly, the respondents are directed to extend all permissible benefits to the petitioner, in aforesaid terms, within eight weeks from today. Writ Petition is allowed and disposed of, in the aforesaid terms. Pending application, if any, also stands disposed of.